The master is expected to proceed from the load port to the discharge port without delay and without departure from the usual geographical route.
If he fails to do so then this may amount to a deviation from the contractual voyage.
Deviation
Deviation in its legal sense is an unjustified departure from the contractual voyage. The general rule is that the contractual voyage will follow the usual geographical route unless it can be shown that
There is a universal custom to follow another route
That the circumstances surrounding the voyage made it clear that the intention of the parties was that some other route should be taken
If the bill of lading expressly describes what route is to be taken or gives the ship owner liberty to select alternative routes even if this means departing from the usual geographical route
If it is necessary for the ship to leave the contractual route for reasons of the safety of the venture
If one of the sources of obligation permits diversion, for example the Hague-Visby Rules permit deviation to save life or property or any reasonable deviation
Where the ship departs from the contractual voyage without justification the consequences of this deviation in legal terms are very drastic. In very broad terms, the ship owner will be deprived of its contractual rights (for example, to receive freight and to enjoy defences expressly given to it by the contract) and in addition may prejudice its insurance cover.
It is therefore important to realize that instructions to take the cargo to any destination other than that named in the bill of loading, even when those instructions are given by characters or shippers who may appear to have very good reason for giving those instructions, should be related with the utmost caution. In every circumstances where such instructions is given, the ship owner or the P & I Association should be consulted.
Lawful deviation and Unlawful deviation
The distinction between lawful deviation and unlawful deviation is important. The borderline between these two concepts is not always so easy to find. Generally, it can be said that deviation for the purpose of avoiding danger to crew, vessel and cargo and deviation for the purpose of saving life or property, are lawful deviations. Naturally, the deviation must be reasonable and when judging whether the deviation is reasonable, not only the interests of the shipowners, but also the interests of the charterers, must be considered.
Unlawful deviation is a breach of contract and the charterers can entitled to damages as well as, in some cases, to cancel the charter agreement.
Deviation Clause GENCON Form (Voyage C/P)
The vessel has liberty to call any port or ports in any order, for any purpose, to sail without pilots, to tow and/or assist vessels in all situations, and also to deviate for the purpose of saving life and/or property.
Deviation Clause in NYPE Form (Time C/P)
The vessel shall have the liberty to sail with or without pilots, to tow and to be towed, to assist vessels in distress and to deviate for the purpose of saving life and property.
P&I Bunkering Clause
– Gives liberty to a ship to deviate for taking bunkers so that a ship owner can take bunkers at ports near oil producing countries where bunker prices are considerably lower. It also allows the ship to take full “roundtrip” bunkers.
– Filling bunkers fuel tanks would have advantages for both owners (who may save another bunker call) and charterers (who may have the freight charges on the homeward voyage reduced as a result of the owners saving).
Delay
Delay in proceeding to the discharge port may cause loss to the buyer of the goods. Delay may also amount to a deviation in the legal sense. However simple failure to commence the loaded voyage and proceed as quickly as possible is not a deviation in the legal sense. To amount to a deviation in the legal sense delay which makes the voyage performed entirely different from that which the parties envisaged would be performed would have to occur.
